Analysis of Self-executing Treaties - Essay Example

Self-executing Treaties Introduction International laws and treaties are part of the laws which ensure that all s live in harmony with each other. The implementation of these treaties in the jurisdiction of each country, however, is a complicated matter. Some nations have adopted a more open approach to these treaties, and some others have opted for a more restrictive approach. Nevertheless, most nations of the world have, in some form or measure, applied these laws and treaties onto their jurisdictions in order to comply with the requisites of international laws and to foster peaceful and open relations with other states. In an effort to assess how international laws and treaties are applied by nation-states, this paper shall discuss the application of self-executing treaties and the position of treaties recovering provisional application. The views of different authors, courts, and international tribunals shall be used to critically assess the implementation of the dualist and the monist approach to treaties. Discussion As part of the international community, states are obliged to follow and respect the provisions and mandates of international laws. These laws help keep the peace between nations and help secure and protect the sovereignty of the different nations of the world. Treaties form part of our international laws. Through the Vienna Convention on the Law of Treaties, the principle of pacta sunt servanda finds application. Nations are free to apply these treaties in any way they see fit. They may apply the dualist approach or the monist approach in order to seek the application of the treaties in their territory. Whatever approach to implementation they choose, these nations have international obligations to fulfill, and their failure to comply cannot be excused using domestic laws as a scapegoat. International responsibilities cannot be ignored because states are risking their economic and political position in the international community (Council of Europe, p. 16). In some countries which follow a dualist approach to treaties, these treaties cannot, as a general rule, be applied by municipal courts until they have been transformed into municipal law by legislative action. However, in the case of self-executing treaties, this rule must be qualified. Treaties are normally endorsed by states and are considered the most common and trusted sources of international law. The Vienna Convention on the Law of Treaties in 1969 was passed in order regulate the enactment of treaties between state parties as well as organizations. According to the Vienna Convention on the Law of Treaties 1969, a state needs to consent to a treaty before it can be bound by its provisions. And this consent needs to be expressed by way of a “signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession or by any other means if so agreed” (Bedjaoui, p. 138). These provisions negate the ideas espoused by self-executing treaties. Treaties do not have automatic application on countries involved because there is a need for states to express their consent in some way – either through their signature or in some other ways which express consent. However, in applying these treaties in the domestic scene, there often is a process which has to be followed. In some states, a treaty has to be accepted by the state and incorporated into its domestic laws before the rights and obligations contained in the provisions of the treaty can be implemented in the domestic level. In some cases, the signature of the involved parties would suffice in authenticating the text of the treaty, however, before it can be enforced in the nation-states involved, “consent to be bound has to be expressed by a second step, such as ratification, acceptance or approval” (Bedjaoui, p. 138). The Vienna Convention has provisions on how states can accept international obligations from treaties; however, the Convention does not regulate how states can bring about the implementation of the treaties at the domestic level. This aspect of implementation is left to the individual states involved, and how such treaties would be implemented would largely depend on the legal system of the particular state involved. The legal systems of some states easily accommodate the enactment of these treaties; however, the domestic laws of other states may often come in contrast with the provisions of treaties. This makes the implementation of these laws a complicated and tedious process. It is however important for states to honor the provisions of treaties because they form part of international law. The legal system that exists in South Africa is largely influenced by British and American legal systems. Through the British influence, South Africa applies the dualist approach in the implementation of treaties. South Africa accepts and applies the common law position which emphasizes that customary law forms part of municipal law; however treaties still require legislative transformation in order to find implementation in the domestic level. The courts had occasion to interpret the implementation of these treaties into the domestic scene through the Pan American World Airways v. SA Fire and Accident Insurance case (1965: 3 SA 150: A at 161). This case criticized the fact that in South Africa “the conclusion of a treaty, convention or agreement by the South African government with any other government is an executive and not a legislative act” (Steyn, as quoted by University of Witwatersrand “Public International Law and Municipal Law”). The case went on to comment that the provisions of an international instrument should be concluded through legislative acts, not through acts of the executive department. Therefore, in the absence of legislative enactments, the rights of the subjects should not be affected by the mandates of the treaty. In the dualist approach, treaties are treated as systems which are separate from the domestic laws. In applying this approach, a treaty does not become automatically applicable within the state until laws in the country have been enacted in order to give the treaty the full effect of a domestic law. This process is known as the ‘act of transformation’. This act of transformation is distinguished from the act of implementation, where a treaty is implemented by simply appropriating money for an award under the treaty. In dualist states, an act of transformation is required in order to incorporate the treaty into the domestic level. In these instances, a statute will be enacted in order to incorporate the treaty into the domestic laws of the state concerned. The statute to be enacted might paraphrase or clarify the provisions of the treaty. Other actions of a country’s legislative body can also constitute acts of transformation. A regulation of an administrative body and even a decision by a court or tribunal may also be considered as acts of transformation. It may also be known through other terms such as adoption or reception, which in essence still constitute the same act of subsuming the provisions of a treaty into the domestic laws of the state (Jackson, pp. 2-4). The self-executing system or the monist system considers treaties to which a particular state is obligated. The standards set in the wider arena of international law covers an individual’s actions in his own states. In a dualist state, international treaties are separate from domestic laws. A treaty therefore is not a direct part of the domestic system. Without further acts from a state, a citizen cannot pursue actions against another person from another state because the latter is covered by his own laws in his own state. A remedy in these instances is for the petitioner in a case to persuade his government to employ diplomatic remedies in order to pursue actions against the offender (Cranwell, pp. 2-4). The United Kingdom applies the dualist approach to the implementation of treaties. For dualist states, they render “special status to treaties, which must be incorporated into domestic law in order for their provisions to take effect internally” (Masire-Mwamba, p. 3). The power to incorporate treaties into domestic law is vested in the legislature. There is no obligation for the Crown to consult with the Parliament before entering into a treaty, however, under the Ponsonby Rule, a treaty subject to ratification has to be forwarded to the Parliament to sit for twenty one days. This will give the Parliament to assess the treaty and determine its merits. This will also give them time to enter their objections to the provisions of the treaty and to reject or accept it as the case may be (Masire-Mwamba, p. 3). Most commonwealth countries follow the dualist approach in their constitutions and their treaties; and other countries apply and implement variations of the dualist and the monist approaches. In the case of South Africa, it applies elements of both the dualist and monist approaches. Their constitution differentiates between treaties of a technical, administrative, or executive nature on one hand, and other treaties on the other. In technical, administrative, or executive treaties, the treaties which are entered into by their chief executive binds the state even without the approval of the National Assembly and the National Council of Provinces. For other treaties, they bind the state only after being approved by the National Assembly and the National Council of Provinces. The designation of technical, administrative, executive and other treaties are taken from the definitions provided by other Commonwealth countries and their constitution (Masire-Mwamba, p. 3). Dualism is most often used in common law countries. This approach makes treaties and other laws an act of the state. And each state has the sovereign right to decide which international laws and treaties would take effect in the domestic level. Based on the dualism approach, domestic law is superior to international laws. However, some studies reveal that African states which apply a dualist approach still feature qualities from the monist approach. Namibia applies the dualist approach, where international law is applied to its territories, unless otherwise provided in their constitution or by acts of their parliament. In contrast, Swaziland applies the monist approach, where the treaties and international laws are self-executing. As was previously mentioned, South Africa applies both approaches (Adjolohoun, “Centre Projects”). These contrasts in practices imply that different possible applications of international laws may be applied to states depending on applicable trends and practices in the state. After the 1996 constitution of South Africa took effect, treaties became a major source of controversy in the country. The main source of controversy seems to be the provisions of S. 231. The proviso to sec. 231 (4) introduced the concept of self-executing treaties into South African law. In essence, the section stated that treaties which are approved by the Parliament but were not incorporated into municipal law by an Act of Parliament are already considered self-executing unless they are found to be inconsistent with the Constitution or by other Acts of Parliament. This approach is otherwise known as the monist approach. This approach, in contrast to the dualist approach, does not need further enactment or acts of transformation from the legislative body before it can be implemented. Through the monist approach, a legal system is considered to include treaties to which the state considers itself bound. In these instances, certain treaties can be directly implemented or applied to the domestic scene of a state, hence, the term self-executing. Once the treaty is ratified by the state, the provisions of the treaty have the force of a law over the constituents of the state. The different branches of the government, most especially the adjudicatory body are now obliged to interpret and apply the provisions of the treaty (Jackson, pp. 5-7). The issue of whether or not the provisions of a treaty are self-executing has been a point of contention in the United States courts for many years. In 1951, Professor Myres McDougal declared the position of the United States on the matter. He declared that “this word self-executing is essentially meaningless, and…the quicker we drop it from our vocabulary, the better for clarity and understanding” (p. 102). The courts in South Africa have not yet definitively decided on the concept of self-executing treaties. Even scholars have contrasting views on the matter. Botha opines that section 231 (4) was adopted ‘unwisely’ from United States jurisprudence “with nor regard to its suitability to the South African context”. The South African courts and legislative set-up is very much different from the systems being implemented in the United States and the United Kingdom. The United States is already finding it a complicated process to interpret and implement the mandates of self-executing treaties. Therefore, South Africa cannot find any help forthcoming in this regard from the United States. Dugard (p. 62) also echoes Botha’s statements by saying that section 231 (4) will force the South African courts to decide whether a treaty is self-executing “in the sense that existing law is adequate to enable the Republic to carry out its international obligations without legislative incorporation of the treaty or whether it is non-self-executing in which case further legislation is required”. The existing laws in South Africa do not possess essential features that make for a favorable implementation of self-executing treaties. The domestic laws do not afford enough protection to South Africa’s sovereignty which should be secured from any breaches. Self-executing treaties carry with them the dangers of violating the sovereignty of nations involved if their provisions are not clearly and prohibitively laid out. Ngolele and Olivier have adopted a different position on the issue created by section 231 (4). They favor the concept of self-executing treaties and they suggest that human rights treaties, such as the International Covenant on Civil and Political Rights, may be directly applied by the South African courts as self-executing treaties. Ngolele rejects the view that South African law needs to be adequate before the self-executing treaties can be fully implemented. However, Ngolele acknowledges that self-executing treaties have limited implementation in South Africa because these treaties can only be self-executing if they are actually consistent with South Africa’s constitution and other Acts of Parliament. And with this admission, Ngolele’s position comes close to the previously mentioned position that municipal law must be adequate for a treaty to be self-executing; such municipal law must not contain provisions which contrast the application of the treaty. In essence, Ngolele implies that self-executing laws are only self-executing to a limited extent; the municipal laws, the constitution, and other Acts of Parliament still precede their effectiveness over the state. Olivier adopts a more radical position as far as Section 231 (4) is concerned. She emphasizes that in terms of sec. 231 (2), a treaty approved by Parliament has direct application in South African law without the need for incorporation, provided that it is not inconsistent with the Constitution or an Act of Parliament. She argues further that self-executing treaties have special relevance for human rights treaties. She emphasizes that self-executing treaties help protect human rights; they hold nations and other organizations liable for human rights violations without the need for further legislation. Other authors agree with her position on the matter as they point out the role of self-executing treaties in putting an end to apartheid in Africa. Legal mandates in the United States which are recognized by other nations point out how the world has come to realize that human rights are an international concern (Supremacy Clause Article VI, clause 2, as quoted by Henkin, p. 198). Her position however, has not received support from South African commentators. On this issue, there are no clear cut rules which can be followed. Each case in which it is claimed that a treaty is self-executing will have to be decided by the courts after considering the nature of the treaty, the precision of the language, and the existing South African law. There are various aspects of treaties which need to be assessed before it can be implemented either through the dualist or the monist approach. The important point is that, these aspects are taken into account before decisions are made on the implementation of treaties. Based on the above assessment of both approaches, the dualist approach seems to be the more complicated approach to apply, not just in South Africa, but in other nations as well. However, it cannot be denied that the dualist approach is actually the more accurate and more favored approach to adapt. The process of having to assess the wisdom of adapting the provisions of a treaty into the domestic scene entails a detailed examination of the treaty. “Thus the onus is on the government and parliament, rather than the citizen or the courts, to determine how far the treaty is to be part of domestic law” (Aust, p. 157). The dualist approach calls for careful examination and assessment which helps protect the state from burdensome treaties which may not even benefit them in the future. Conclusion International laws and treaties may be applied through various ways depending on the nature of the state and the legal system of the nation involved. Some nations may adapt either the dualist or the monist approach, or a combination of both approaches. The dualist approach calls for the state to come up with an act of incorporation before the provisions of the treaty can be enacted in the domestic level. On the other hand, the monist approach makes the treaty self-executing, except when it comes into conflict with the provisions of the country’s constitution or its Acts of Parliament. In the case of South Africa, it applies a combination of these two approaches. The provisions of Section 231 (4) of their 1996 Constitution however called for the application of the self-executing approach. So far, this approach has not been totally embraced by interest groups, politicians, and political analysts in South Africa. And the merits and demerits of the self-executing approach for Africa have yet to be fully established. Works Cited Adjolohoun, H. “International law and human rights litigation in Africa: Making a case in a labyrinth of systems and actors”. 2009. Commission on Human Rights. 18 August 2009. http://www.chr.up.ac.za/centre_projects/ildc/papers_2009/Adjolohoun.doc Aust, A. “Modern treaty law and practice”. 2000. 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Henkin, L. “Foreign affairs and the United States Constitution”. 2002. New York: Oxford University Press Jackson, J. “Status of Treaties in Domestic Legal Systems: A Policy Analysis”. 1992. American Society of International Law. 18 August 2009 http://www.asil.org/ajil/v86310.pdf Masire-Mwamba, M. “Commonwealth Law in a Globalised World Speech by Commonwealth Deputy Secretary-General Mmasekgoa Masire-Mwamba”. (n.d) The Commonwealth.org. 18 August 2009 http://www.thecommonwealth.org/shared_asp_files/gfsr.asp?NodeID=187932&attributename=file McDougal, M. 45 “Proceedings of the American Society of International Law” 102. 1951. Michie, A “The provisional application of treaties in South African law and practice”. (2005)30 SAYIL 1-32 Olivier, M. “Exploring the doctrine of self-execution as enforcement mechanism of international obligations (2002)27 Sayil pg 99 “Public International Law and Municipal Law”. (n.d). University of Witwatersrand. 18 August 2009 http://web.wits.ac.za/NR/rdonlyres/618CC5FB-4AF7-403C-BBCEFC22AF1B4A8E/0/Overhead13.doc Read More